Court File and Parties

Court File No.: 14-08795 Central East Region-Newmarket Date: June 9, 2016 Ontario Court of Justice

Between: Her Majesty the Queen — and — Rathis Perinpasivam

Before: Justice Peter C. West

Evidence Heard: December 3, 2015 and April 11 and 26, 2016 Submissions Heard: April 26, 2016 Reasons for Judgment: June 9, 2016

Counsel:

• Ms. J. Halajian, Mr. B. Jurianz and Ms. S. Kumaresan for the Crown
• Mr. D. Midanik for the accused

WEST J.:

Introduction

[1] Mr. Perinpasivam was charged on November 16, 2014 with operate a motor vehicle with a blood/alcohol concentration greater than 80 mg in 100 ml of blood. A Charter application was filed by the defence respecting breaches of ss. 9 and 10(b) and it was agreed by counsel the matter could proceed by way of a blended hearing.

[2] The Crown called two witnesses, P.C. Ryan Lewis, the investigating officer and P.C. Sidenberg, the qualified breath technician. Mr. Perinpasivam testified on the blended hearing.

[3] On December 3, 2015, during the examination in-chief of P.C. Lewis, the importance of the exact conversation between P.C. Lewis and Mr. Perinpasivam was central to the issues. In fact, there was a dispute between the Crown and defence as to exactly what Mr. Perinpasivam said when he was asked by P.C. Lewis if he had his own lawyer. As a result, the trial was adjourned to April 11, 2016 and Mr. Midanik undertook to have a transcript of the in-car camera video produced. On April 11, 2016, the new Crown discovered the two police officers required had not been notified to attend. P.C. Sidenberg, the qualified breath technician, was working and arrived at the courthouse mid-morning. Unfortunately, P.C. Lewis could not be reached and the trial had to be adjourned to April 26, 2016. On April 26, 2016, a third Crown counsel was present and the evidence was completed and oral submissions were heard.

[4] At the conclusion of the evidence Mr. Midanik argued Mr. Perinpasivam's s. 10(b) rights were breached by the police because of their failure to implement his request to speak to duty counsel. It was Mr. Midanik's submission the breach of the police obligation to implement a detainee's right to counsel is sacrosanct and a s. 24(2) analysis favours exclusion of the evidence obtained. The Crown submitted I should accept the police officers' evidence and find Mr. Perinpasivam had waived his right to counsel upon his arrival at the RIDE truck. If there was a breach of Mr. Perinpasivam's rights pursuant to s. 10(b) I should allow the breath test results into evidence pursuant to s. 24(2).

Factual Background

[5] On November 16, 2014, P.C. Lewis stopped Mr. Perinpasivam at 2:24 a.m. because he was speeding in a 60 km zone. The vehicle stop occurred on Markham Road south of Steeles Avenue. The in-car camera video, Exhibit 3, was played in court while P.C. Lewis was testifying. Mr. Midanik provided a transcript of the in-car camera video, which was marked as Exhibit 3A.

[6] P.C. Lewis detected an odour of an alcoholic beverage coming from inside the vehicle and Mr. Perinpasivam admitted to consuming one beer earlier. There were three passengers inside the vehicle and P.C. Lewis observed a number of alcohol bottles on the floor of the vehicle. Mr. Perinpasivam's eyes were bloodshot and glossy. The officer asked for his documents and Mr. Perinpasivam had no difficulty providing them. The officer ran Mr. Perinpasivam on his police cruiser's computer.

[7] When he returned to the vehicle he requested Mr. Perinpasivam to step outside to determine if there was an odour of alcohol on his breath and to determine if his ability to operate the motor vehicle was impaired by the consumption of alcohol. P.C. Lewis testified he had formed a reasonable suspicion Mr. Perinpasivam had alcohol in his body.

[8] At approximately 2:32 a.m., P.C. Lewis read the approved screening device demand from the back of his police notebook. Mr. Perinpasivam indicated he understood the demand. P.C. Lewis demonstrated the ASD and it registered a zero. He had tested the ASD at the beginning of his shift on November 15, 2014 and determined it had been calibrated on November 2, 2014. He believed the ASD was in proper working order.

[9] Mr. Perinpasivam blew into the ASD at 2:34 a.m. and registered a "Fail." As a result P.C. Lewis formed reasonable and probable grounds Mr. Perinpasivam had over 80 mg of alcohol in 100 ml of blood and placed him under arrest. He knew the ASD was calibrated to register a "Fail" at 100 mg of alcohol in 100 ml of blood.

[10] P.C. Lewis advised Mr. Perinpasivam he would have to come back to the police station to provide a sample of his breath there. He advised dispatch he had arrested an individual for over 80 and requested another officer to attend his location to impound the vehicle and make arrangements for the passengers who he believed were also intoxicated.

[11] At 2:37 a.m., P.C. Lewis read the right to counsel printed in the back of his police notebook. The transcript reveals the following exchange:

P.C. Lewis: …Alright, I am arresting you for impaired driving. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may be able to – you may apply, excuse me, to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is the number that will put you in contact with the Legal Aid and duty counsel lawyer for free legal advice right now. Do you understand?

RP: Mm.

P.C. Lewis: Do you wish to call a lawyer right now?

RP: Uh, not right now, but I'll call later.

P.C. Lewis: Okay, so – do you have your own lawyer? Or – […]

RP: Uh, I don't, but I'll probably just go with duty counsel right now.

[12] P.C. Lewis advised Mr. Perinpasivam that was okay and then read him the caution and breath demand. Mr. Perinpasivam indicated he understood.

[13] P.C. Lewis then went to the motor vehicle and advised the passengers Mr. Perinpasivam had failed the ASD and that the vehicle was going to be impounded. The officer returned a cell phone to Mr. Perinpasivam's girlfriend who was one of the passengers.

[14] While P.C. Lewis is waiting for the second officer to arrive, Mr. Perinpasivam asks the officer whether he will be released on a promise to appear, to which the officer indicates yes. Further, he asks the officer if the officer can just lay the charge there and let him go home, to which the officers indicates he cannot and has to bring him to the police station to provide a breath test. At 2:45 a.m., the second officer arrives and P.C. Lewis advises him what has transpired and what needs to be done.

[15] P.C. Lewis was advised by dispatch to take Mr. Perinpasivam to Interchange Way in Vaughan where the RIDE truck was located in the Ikea parking lot. P.C. Lewis left the scene at 2:58 a.m. and arrived at 3:22 a.m. where he turned off his lapel microphone before bringing Mr. Perinpasivam into the RIDE truck.

[16] P.C. Lewis testified when he arrived at the RIDE truck's location he asked Mr. Perinpasivam if he wanted to speak to duty counsel, which he declined. He asked this question because he believed Mr. Perinpasivam may have told him earlier he did not have his own lawyer but he did not have anything in his notes about this. P.C. Lewis testified he did not know how or what Mr. Perinpasivam said when he declined to speak to duty counsel.

[17] P.C. Lewis turned Mr. Perinpasivam over to the breath technician and received him back shortly after 4 a.m. Mr. Perinpasivam did not make any requests or complainants about not being able to contact duty counsel before he provided his breath samples according to P.C. Lewis' notes.

[18] In cross-examination P.C. Lewis testified Mr. Perinpasivam declined to speak to duty counsel while he was still in the police cruiser and it would be reflected on the in-car camera video. Once he turned Mr. Perinpasivam over to P.C. Sidenberg on the RIDE truck P.C. Lewis testified he was sitting in a separate area preparing court documents and his notes. He was not able to hear any conversation P.C. Sidenberg may have had with Mr. Perinpasivam.

[19] P.C. Lewis agreed he did not tell the breach technician Mr. Perinpasivam wanted to speak to duty counsel. In cross-examination P.C. Lewis agreed, from listening to the in-car camera video, that Mr. Perinpasivam wanted to speak to duty counsel and P.C. Lewis' obligation was to facilitate putting him in contact with duty counsel when they arrived at the police station or, in this case, at the RIDE truck. He agreed there was a private room with a telephone in the RIDE truck where Mr. Perinpasivam could speak to duty counsel.

[20] Initially P.C. Lewis testified he asked Mr. Perinpasivam in the police car whether he wanted to speak to duty counsel. He testified this would be on the in-car camera video. P.C. Lewis was unable to recall why he asked Mr. Perinpasivam this but he thought he recalled Mr. Perinpasivam indicating when the right to counsel was read that he did not have his own counsel. Mr. Midanik showed P.C. Lewis the transcript, Exhibit 3A, which revealed P.C. Lewis did not ask Mr. Perinpasivam in the police cruiser whether he wanted to speak to duty counsel. Further, the transcript did not reflect Mr. Perinpasivam declining to speak to duty counsel. When P.C. Lewis was confronted with the transcript his evidence changed and he testified he must have asked Mr. Perinpasivam if he wanted to call duty counsel when he was walking with him to the RIDE truck.

[21] P.C. Lewis agreed Mr. Perinpasivam was polite and co-operative throughout the officer's dealings with him. He had no safety concerns respecting Mr. Perinpasivam. He knew Mr. Perinpasivam had a cell phone because he returned the cell phone to Mr. Perinpasivam's girlfriend just before they left the scene. It was P.C. Lewis' position he could not have contacted duty counsel while Mr. Perinpasivam was seated in the rear of the police cruiser because of YRP policy not to allow detainees to be in the back of a police vehicle unless they are handcuffed. He agreed he could have contacted duty counsel on the cell phone and if and when duty counsel called back he could have put the cell phone on speaker, turned off the audio on the in-car camera and then exited the police cruiser to give Mr. Perinpasivam privacy in his conversation with duty counsel. He did not do this despite the passage of 20 minutes.

[22] P.C. Lewis agreed Mr. Perinpasivam was asking him questions of a legal nature while he was waiting in the police vehicle at the scene and during the drive to the RIDE truck, such as whether he could just be charged with failing the ASD and go home and what was going to happen to his car. He agreed these might be the kinds of questions a detainee would ask duty counsel.

[23] When the police officer attended the scene to take over responsibility for Mr. Perinpasivam's car and to make arrangements for the passengers P.C. Lewis left the police cruiser, turned off his lapel mike and explained to this officer what had transpired. After reviewing the in-car camera, P.C. Lewis testified he never turned his lapel microphone back on. He agreed his asking Mr. Perinpasivam if he wanted to speak to duty counsel when they arrived at the RIDE truck and Mr. Perinpasivam's response were significant and should have been recorded. He could not recall if he considered turning his lapel microphone back on. Further, he agreed he should have recorded in his notes the exact question he asked and Mr. Perinpasivam's verbatim response. He did not do this. P.C. Lewis testified he had no recollection of what question he asked or what Mr. Perinpasivam's response was.

[24] P.C. Lewis also testified he took the answer by Mr. Perinpasivam as to whether he wanted to call a lawyer right now; namely, "not right now, but I'll call later," applied to Mr. Perinpasivam's later response when P.C. Lewis asked if he had a his own lawyer and Mr. Perinpasivam responded "I don't, but I'll probably just go with duty counsel right now." This was despite P.C. Lewis admitting in cross-examination he now recognized Mr. Perinpasivam was in fact requesting an opportunity to speak to duty counsel when they arrived at the police station or the RIDE truck. Further, P.C. Lewis agreed he had an obligation, as a result of Mr. Perinpasivam's request to speak to duty counsel, to implement and facilitate Mr. Perinpasivam's access to duty counsel upon his arrival at the RIDE truck.

[25] During the transport to the RIDE truck P.C. Lewis continued having conversation with Mr. Perinpasivam and at one point talked to Mr. Perinpasivam about the possibility he might blow under at the station and there would be no charge. P.C. Lewis also asked questions about the car Mr. Perinpasivam was driving, which he confirmed was Mr. Perinpasivam's mother's.

[26] In re-examination P.C. Lewis testified his notes indicated Mr. Perinpasivam declined to speak to duty counsel when they arrived at the RIDE truck. The Crown asked P.C. Lewis if he had an independent recollection of asking Mr. Perinpasivam if he wanted to call duty counsel when they arrived at the RIDE truck and P.C. Lewis testified he did not have an independent recollection of asking this question.

[27] P.C. Sidenberg testified P.C. Lewis arrived sometime between 3:20 and 3:25 a.m. He was conducting calibration and diagnostic checks on the Intoxilyzer 8000C instrument and did not receive the grounds from P.C. Lewis until 3:38 a.m. P.C. Lewis wrote in the Alcohol Influence Report his grounds were "bloodshot glassy eyes, smell of alcohol from his face and failed Approved Screening Device." P.C. Sidenberg testified it is his practice to ask a detainee if they had an opportunity to speak to counsel. It was his recollection Mr. Perinpasivam knew he was going to be released so he wanted to speak to a lawyer at a later time. It was P.C. Sidenberg's evidence that Mr. Perinpasivam was offered free duty counsel.

[28] P.C. Sidenberg later in his evidence in-chief testified he had no recollection of discussing counsel with Mr. Perinpasivam and Mr. Perinpasivam made no request of him concerning a lawyer or duty counsel. P.C. Sidenberg was advised by P.C. Lewis when he provided his grounds for the arrest that Mr. Perinpasivam had declined to speak to counsel.

[29] P.C. Sidenberg read a breath demand to the accused and a secondary caution. He obtained two suitable samples of breath into the Intoxilyzer 8000C at 3:39 a.m. and 4:00 a.m. which reflected blood/alcohol concentrations of 124 and 125 respectively.

[30] It was pointed out to P.C. Sidenberg that page 2 of his Alcohol Influence Report reflected a number of "X"s and slashes. There were "X"s on the "No" response to the following two questions: "Did the accused contact counsel?" and "Did the accused contact duty counsel?" There was a slash on the "No" to the question "Did the accused request counsel of choice?" and a slash on the "Yes" to the question "Did the accused contact counsel of choice?" Under the question "If counsel of choice was requested but not contacted, explain reason(s) why?" P.C. Sidenberg had written "DECLINED COUNSEL."

[31] P.C. Sidenberg explained it was very busy on this particular early morning, November 16, 2014, and he had a number of breath tests. Consequently, it is his practice to put a slash in an area of the Alcohol Influence Report if it is not applicable.

[32] P.C. Sidenberg testified the investigating officer never told him Mr. Perinpasivam requested to speak to duty counsel when he was read the right to counsel after he was arrested. P.C. Sidenberg agreed he did not ask Mr. Perinpasivam if he wanted to speak to duty counsel. He did not have a note of Mr. Perinpasivam telling him he did not want to speak to counsel. P.C. Sidenberg testified he was told by P.C. Lewis that Mr. Perinpasivam did not want to speak to counsel or duty counsel. The information that Mr. Perinpasivam declined counsel on page 2 of the Alcohol Influence Report came from P.C. Lewis.

[33] There is no audio or video recording device in the YRP RIDE truck. All breath rooms in YRP police stations are equipped with video/audio recorders to capture exactly what is said by the qualified breath technician and the accused during the breath tests.

[34] P.C. Sidenberg made no notes of any conversations he may have had with the accused about counsel. He testified it has never been an issue before that the YRP RIDE truck is not equipped with a video/audio recorder but recently this has become an issue in court. YRP has a centralized breath program and P.C. Sidenberg testified he was the authorized breath technician on duty on that shift. He was detailed to use the RIDE truck, which he parked in the Ikea parking lot in Vaughan. P.C. Sidenberg testified it is quicker to process and perform a breath test in the RIDE truck than at a police station.

[35] Mr. Perinpasivam testified he was coming from a family funeral. The officer read him his right to counsel and he told the officer he would call a criminal lawyer later, which he believed would be later when they arrived at the police station. When he was asked if he had his own lawyer he told the officer he would probably just go with duty counsel right now. In cross-examination he testified he wanted to speak to duty counsel and he would speak to his own lawyer after he was released by the police. He was telling the officer he wanted to speak to duty counsel "at that moment."

[36] Mr. Perinpasivam never changed his mind about speaking to duty counsel. He was never asked by P.C. Lewis again if he wanted to speak to duty counsel and if he had been asked he would have said yes. Mr. Perinpasivam testified in-chief and in cross-examination the breath technician never talked to him about whether he wanted to speak to a lawyer or duty counsel.

Position of the Parties

[37] At the conclusion of the evidence on the blended hearing the Crown closed its case. Ms. Kumaresan conceded there was a s. 10(b) Charter breach but argued the breath readings should not be excluded based on the s. 24(2) analysis, which she argued favours admission of the breath results. The Crown conceded the implementational component of the s. 10(b) Charter right was infringed by P.C. Lewis not contacting duty counsel when he arrived at the RIDE truck. Ms. Kumaresan submitted if I accepted the evidence of P.C.s Lewis and Sidenberg that Mr. Perinpasivam eventually, at the RIDE truck, said he did not want to speak to duty counsel then the breach is not a serious breach and the breath results should not be excluded.

[38] It was the defence position that there were two s. 10(b) breaches. The first was P.C. Lewis not contacting duty counsel at the scene knowing Mr. Perinpasivam wanted to speak to duty counsel and knowing there was going to be a considerable delay waiting for another officer to attend to deal with the impound of Mr. Perinpasivam's car and the safety of the three passengers. Second, Mr. Midanik argues P.C. Lewis did not implement and facilitate Mr. Perinpasivam's request to speak to duty counsel when they arrived at the RIDE truck. What he did do is advise P.C. Sidenberg, the breath technician, that Mr. Perinpasivam declined to speak to counsel, which was completely contrary with the in-car camera video where Mr. Perinpasivam requested the opportunity to speak with duty counsel. He argues I should accept Mr. Perinpasivam's evidence on this point.

[39] It was Mr. Midanik's argument, even if I accept P.C. Lewis' evidence that he asked Mr. Perinpasivam when they arrived at the RIDE truck if he still wanted to speak to duty counsel, this would be a violation of s. 10(b) as P.C. Lewis' obligation upon arriving at the RIDE truck was to facilitate Mr. Perinpasivam speaking to duty counsel. Mr. Midanik submitted this would be a breach of s. 10(b) because by asking Mr. Perinpasivam whether he still wanted to speak to duty counsel this could be viewed as P.C. Lewis trying to talk the accused out of speaking to duty counsel.

Analysis

[40] Although the Crown conceded there was a s. 10(b) Charter breach it is my view it is important and necessary to analyze the evidence called respecting Mr. Perinpasivam's request to speak to duty counsel and to determine exactly what breaches respecting the right to counsel occurred.

[41] In R. v. Brydges (1990), 53 C.C.C.(3d) 330 (S.C.C.), the Supreme Court held the police must give a detainee his rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informed decision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v. Manninen, (1987), 34 C.C.C. (3d) 385 (S.C.C.) at p. 391.

[42] In R. v. Prosper, [1994] 3 S.C.R. 236, the Supreme Court examined the implementational component as it related to the availability of duty counsel concluding:

34 As this Court has stated on a number of occasions, s. 10(b) imposes both informational and implementational duties on state authorities who arrest or detain a person. (See Bartle, [1994] 3 S.C.R. 173, at pp. 192-94; R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; Brydges, at pp. 203-4.) Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. As the majority indicated in R. v. Ross, [1989] 1 S.C.R. 3, at p. 12, once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In other words, the police are obliged to "hold off" from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. [Emphasis added]

35 In my view, what constitutes a "reasonable opportunity" will depend on all the surrounding circumstances. These circumstances will include the availability of duty counsel services in the jurisdiction where the detention takes place. As the majority in Brydges suggested (at p. 216), the existence of duty counsel services may affect what constitutes "reasonable diligence" of a detainee in pursuing the right to counsel, which will in turn affect the length of the period during which the state authorities' s. 10(b) implementational duties will require them to "hold off" from trying to elicit incriminatory evidence from the detainee.

36 ... In determining what is a reasonable opportunity, the fact that the evidence may cease to be available as a result of a long delay is a factor to be considered.

39 Making the police hold off in situations where a detainee has been reasonably diligent in exercising his or her right to counsel, including where appropriate trying to reach a private lawyer, and where "Brydges duty counsel" is not available would accommodate a detainee's privilege against self-incrimination. The police investigation with respect to evidence in the construction of which a detainee must necessarily participate (e.g., confessions, identification evidence, and breath and blood samples) would have to be held in abeyance until such reasonable time as a detainee is able to make contact with a private lawyer or whatever duty counsel service is in existence in the jurisdiction.

[43] P.C. Lewis testified he understood Mr. Perinpasivam's response to "do you have your own lawyer" as being a clear request by Mr. Perinpasivam to speak to duty counsel. He understood he had an implementational duty to provide a reasonable opportunity for Mr. Perinpasivam to retain and consult with duty counsel. He agreed he did not provide any opportunity for Mr. Perinpasivam to speak to duty counsel.

[44] What is particularly troubling in this case is P.C. Lewis' evidence he asked Mr. Perinpasivam in the police car when they arrived at the RIDE truck's location whether he wanted to speak to duty counsel. First, there was no need for the question to be asked, as Mr. Perinpasivam's request to speak to duty counsel was unequivocal and clear. P.C. Lewis testified he knew it was his obligation to implement and facilitate putting Mr. Perinpasivam in contact with duty counsel upon arrival at the RIDE truck. He knew there was a phone and private room inside the RIDE truck for this purpose. Second, the in-car camera video does not show P.C. Lewis asking Mr. Perinpasivam if he wanted to speak to duty counsel when they arrived at the RIDE truck. In my view this demonstrates P.C. Lewis' recollection about where and when or if he even asked this question and Mr. Perinpasivam's response as being poor or non-existent.

[45] P.C. Lewis knew he had turned his lapel microphone off when he spoke to the assisting officer to discuss next steps relating to what was to be done with Mr. Perinpasivam's car and the three passengers. He did not turn his lapel microphone back on after speaking to this officer. P.C. Lewis testified he knew the importance of the right to counsel and his obligation to implement and facilitate access to counsel or duty counsel when one was requested by a detainee. Further, he knew the importance of recording the exact words spoken by all parties. His notes do not reflect the verbatim conversation and P.C. Lewis admitted he did not have an independent recollection of when, where or exactly what conversation took place. P.C. Lewis' notes on this important issue leave much to be desired in providing assistance in my assessment of P.C. Lewis' credibility. P.C. Lewis also changed his evidence when he was confronted with the in-car camera video and he then testified he must have asked the question after they exited the police cruiser. I find this was a convenient rationalization of his previous testimony, which also reflects badly on his credibility and reliability respecting this issue.

[46] Mr. Perinpasivam testified he was not asked again by P.C. Lewis if he wanted to speak to duty counsel when they arrived at the RIDE truck. His evidence was not seriously challenged in cross-examination. I accept Mr. Perinpasivam's evidence that P.C. Lewis did not ask him if he wanted to speak to duty counsel when they arrived at the RIDE truck. The lack of detailed notes where a police officer has no recollection whatsoever of what the conversation between himself and the accused was respecting the right to counsel is a significant omission. Further, P.C. Lewis ultimately admitted he did not have any independent recollection of asking Mr. Perinpasivam when they got to the RIDE truck's location if he wanted to speak to duty counsel. He only testified he asked this question at the RIDE truck because of his note, which did not include any details.

[47] I find Mr. Perinpasivam has established on a balance of probabilities that he invoked his right to counsel by indicating he wanted to speak to duty counsel as he did not have his own lawyer. The onus therefore shifts to the Crown to establish Mr. Perinpasivam subsequently and unequivocally waived his right to consult counsel. The standard required for an effective waiver is "very high" once the detainee has established he has asserted the right: R. v. Prosper, supra, at pp.274-275; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 27-28. It is my view the implementational duties on the police were triggered as a result of Mr. Perinpasivam's request to speak to duty counsel. P.C. Lewis recognized it was his duty to facilitate Mr. Perinpasivam's access to duty counsel upon arrival at the RIDE truck, which he admits he did not do. P.C. Lewis agreed there was no reason for him to ask Mr. Perinpasivam if he still wanted to speak to duty counsel upon their arrival at the RIDE truck.

[48] I find, based on P.C. Lewis' evidence, his failure to make detailed notes in his police notebook and his admission he did not have an independent recollection of even asking the question or Mr. Perinpasivam's response and on the evidence I accept, the Crown has not satisfied me on a balance of probabilities that Mr. Perinpasivam waived his right to counsel, which I have found he clearly and unequivocally invoked. In my view this was a serious breach of Mr. Perinpasivam's right to counsel. Mr. Perinpasivam was in custody and had requested to speak to duty counsel. He was under the control of the police. P.C. Lewis had an obligation to hold off any questioning or the collection of any evidence until Mr. Perinpasivam had exercised his right to counsel. P.C. Lewis did not do that. He admitted discussing a number of issues with Mr. Perinpasivam concerning release from custody, the impounding of his motor vehicle and license suspension during the drive from the scene to the RIDE truck, which was improper in light of Manninen.

[49] Mr. Midanik also points to P.C. Lewis' failure to contact duty counsel when he knew there would be further delay waiting for a second officer to attend the scene to look after the vehicle impound and the safety of the three passengers. P.C. Lewis knew Mr. Perinpasivam had a cell phone and he agreed he could have used this phone to call duty counsel; however, P.C. Lewis maintained once an individual had been arrested and handcuffed and placed into the rear of a police cruiser he would not remove the handcuffs to allow contact with counsel. P.C. Lewis agreed he could have put the cell phone on speaker if duty counsel had returned the call, turned off the audio of the in-car camera and then exited the police cruiser to provide Mr. Perinpasivam privacy.

[50] P.C. Lewis admitted he did not turn his mind to the various options available to him to facilitate Mr. Perinpasivam's right to counsel at the scene. In my view, the 20-minute delay provided a realistic opportunity to consult with counsel after arrest while they were awaiting the arrival of the second officer (see R. v. Torsney (2007), 2007 ONCA 67, 217 C.C.C. (3d) 571 (Ont. C.A.), leave to appeal to S.C.C. refused [2007] 2 S.C.R. viii). I have tried numerous cases where a police officer has contacted counsel of choice or duty counsel to provide a detainee the opportunity to retain and instruct counsel where the arresting officer recognized there would be a delay in an ASD being delivered or a delay in the arrival of an assisting police officer. Again, in this modern age where cell phone technology and the availability of cell phones for use are widespread, it makes eminent good sense for police officers to put a detainee into contact with counsel at the scene where there is a "realistic opportunity" to consult with counsel. P.C. Lewis did not even address his mind to this issue. In my view there was a "realistic opportunity" for Mr. Perinpasivam to retain and instruct counsel during this 20-minute delay.

[51] P.C. Sidenberg testified P.C. Lewis advised him, when he provided his grounds for arrest, that Mr. Perinpasivam had declined to speak to counsel, which is what P.C. Sidenberg noted on Exhibit 2, which is the second page of his Alcohol Influence Report. This was not information he received from Mr. Perinpasivam.

[52] Initially P.C. Sidenberg testified in-chief he confirmed with Mr. Perinpasivam that Mr. Perinpasivam was declining to speak to duty counsel. However, in cross-examination P.C. Sidenberg testified he did not make any notes as to any conversation he had with Mr. Perinpasivam concerning the right to counsel and although it was his general practice to have such a conversation he did not have any independent recollection of having this conversation with Mr. Perinpasivam. He further agreed he did not make any notes of having a conversation with Mr. Perinpasivam about speaking to duty counsel. P.C. Sidenberg agreed P.C. Lewis never told him Mr. Perinpasivam wanted to speak to duty counsel upon being read his right to counsel.

[53] It certainly would have been of great assistance had the breath samples been obtained at a York Regional Police station as the breath room would have been equipped with a video and audio recorder, which would have recorded any conversations between P.C. Sidenberg and Mr. Perinpasivam concerning the issue of counsel or duty counsel. Unfortunately, according to P.C. Sidenberg, the York Regional Police Service has made a policy decision not to equip their RIDE truck(s) with video/audio recording equipment. A further decision was made to create a centralized breath program where the qualified breath technician would set up in the RIDE truck in a central location in the region and officers would be directed to bring detainees to that location to provide breath samples. It was P.C. Sidenberg's evidence this often resulted in breath samples being obtained in a much quicker fashion as a result of there being no necessity to conduct the booking process. However, in the technological era of the 21st century, where YRP police cars are equipped with in-car cameras, which video/audio record events both inside and outside the police car, where police officers wear lapel microphones to record conversations with detainees and where all of the YRP breath rooms in the police divisions are equipped with cameras and recording equipment which captures the events, both by video and audio, it does not make any sense for a RIDE truck not to be equipped with proper video/audio recording equipment.

[54] P.C. Sidenberg did not make any notes respecting any conversations he may have had with Mr. Perinpasivam concerning whether Mr. Perinpasivam wanted to speak to a lawyer. The effect of not equipping the RIDE truck with readily available technology, particularly where the breath technician, as in this case, has no recollection of any conversations between himself and the detained accused concerning the right to counsel, leads to a situation where I am unable to determine whether P.C. Sidenberg did, in fact, follow his general practice.

[55] Mr. Perinpasivam testified the breath technician did not ask him if he wanted to speak to duty counsel. Again he was not seriously challenged in cross-examination. Based on the totality of the evidence I accept Mr. Perinpasivam's evidence as his testimony was not seriously challenged in cross-examination. Further, it does not make sense for P.C. Sidenberg to have a further discussion about duty counsel or counsel with Mr. Perinpasivam where the investigating officer, when he provided his grounds for arrest, advised P.C. Sidenberg that Mr. Perinpasivam had declined counsel. Further support for drawing this inference can be found in P.C. Sidenberg's evidence of how busy he was on this early morning.

[56] Considering the totality of the evidence I find Mr. Perinpasivam's Charter rights pursuant to s. 10(b) were infringed. He had requested to speak to duty counsel and the police did not implement or facilitate his being able to speak to duty counsel to obtain advice. It is clear from the in-car camera video that Mr. Perinpasivam wanted to speak to a lawyer. He was co-operative and polite with both police officers. During the transport to the YRP RIDE truck P.C. Lewis continued to have conversation with Mr. Perinpasivam and did not advise Mr. Perinpasivam he could not have any conversation with him until after Mr. Perinpasivam had spoken to duty counsel. In particular, the in-car camera video revealed P.C. Lewis advised Mr. Perinpasivam that the results of the breath test at the RIDE truck could be under the legal limit, which is concerning as it deals directly and specifically with the type of legal advice Mr. Perinpasivam would have received from duty counsel had he been given the opportunity to speak to duty counsel. Further, I find there was a breach of the right to counsel in not affording an opportunity for Mr. Perinpasivam to speak to counsel while waiting for the second police officer to arrive at the scene. As I indicated previously the Crown conceded there was a Charter breach of s. 10(b); however, I have analyzed the nature of the s. 10(b) Charter breach to assist in my determination pursuant to s. 24(2) in deciding whether to exclude the breath test results.

Section 24(2) Analysis

[57] Consequently, having found what I would describe as a serious breach of Mr. Perinpasivam's right to counsel I must now consider whether the breath tests, which were obtained after the Charter breach, should be admitted or excluded pursuant to the analysis in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. At paragraph 71, the Supreme Court of Canada summarized the proper approach to s. 24(2) of the Charter in the following words:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

The Court thereafter fleshes out the three considerations and provides guidance with respect to their application in relation to various types of evidence that are commonly the object of Charter applications for exclusion.

A. Seriousness of the State Conduct

[58] Under this factor, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice.

[59] A number of recent decisions have addressed what must be examined and considered under the first prong of the Grant test. Justice Campbell in R. v. Rehill, 2015 ONSC 6025, [2015] O.J. No. 5068 (Ont. S.C.) held the court

…must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances (e.g. the need to prevent the disappearance of evidence) may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 72-75; R. v. Taylor, at para. 39.

[60] The right to speak to counsel after arrest and before questioning by police or the eliciting of evidence by police is one of the most basic rights enshrined in the Charter. There is no hierarchy of Charter rights; but in the context of a criminal investigation, access to counsel is vital. Access to legal advice ensures that a detainee is able to make a free and informed choice whether to cooperate with the police and guards against the risk of involuntary self-incrimination (see R. v. Taylor, 2014 SCC 50, [2014] S.C.J. No. 50, at para. 21; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40).

[61] It is my view a breach of the right to counsel such as in this case, where a detainee has unequivocally requested to speak to duty counsel yet the police do not implement or facilitate putting the detainee in contact with duty counsel, is a serious one and more than a trivial violation or inadvertence on the part of the police officer. Mr. Perinpasivam had requested to speak to duty counsel. P.C. Lewis did not facilitate or implement contact with duty counsel. Instead, he testified he asked Mr. Perinpasivam if he still wanted to speak to duty counsel. As I have indicated I do not accept his evidence in this regard. Both P.C. Lewis and P.C. Sidenberg's independent recollections surrounding the right to counsel are basically non-existent. Their notes are cryptic and sparse and leave much to be desired and did not refresh their memory as to the exact substance of the conversation in the case of P.C. Lewis or whether a conversation even occurred in the case of P.C. Sidenberg. As I have indicated I do not have any confidence the officers did what they initially testified they did respecting Mr. Perinpasivam's right to counsel.

[62] Further, P.C. Lewis could have very easily contacted duty counsel during the delay at the scene waiting for a second officer to arrive by using Mr. Perinpasivam's cell phone to call duty counsel, putting the cell phone on speaker if the officer was unable to remove the handcuffs due to safety concerns, turn off the audio of the in-car camera and then exit the police cruiser to afford Mr. Perinpasivam privacy. As I have indicated there was a "realistic opportunity" to contact and speak with duty counsel in the time P.C. Lewis waited before leaving to drive to the RIDE truck in Vaughan.

[63] It is my view looking at the totality of the evidence there are serious breaches of Mr. Perinpasivam's right to counsel pursuant to s. 10(b). Despite Mr. Perinpasivam clearly requesting to speak to duty counsel, P.C. Lewis did not do anything to implement or facilitate him accessing counsel. Further, as I have indicated above, it did not make sense for P.C. Lewis to ask Mr. Perinpasivam if he wanted to speak to duty counsel in the face of a clear and unequivocal request. P.C. Sidenberg conceded his notes in the Alcohol Influence Report reflected what he was advised by P.C. Lewis when he provided his grounds for arrest and not a conversation about the right to counsel with Mr. Perinpasivam as he initially testified in-chief. The failure to implement and facilitate the right to counsel is at the extreme end of seriousness. This factor favours exclusion of Mr. Perinpasivam's breath results as they were taken without his exercising his right to retain and instruct counsel.

B. The Impact on Mr. Perinpasivam's Charter Protected Interests

[64] I have already referred to P.C. Lewis telling Mr. Perinpasivam his breath results might be under the legal limit and that this would result in no charges being laid against Mr. Perinpasivam. P.C. Lewis was under an obligation to cease questioning Mr. Perinpasivam during the ride to the RIDE truck as Mr. Perinpasivam had advised he wanted to speak to duty counsel. Mr. Perinpasivam was entitled to receive legal advice from a lawyer concerning his arrest for over 80. This legal advice should not have been provided by P.C. Lewis. As I have referred to above, this was not the only conversation P.C. Lewis had with Mr. Perinpasivam during the drive to the RIDE truck despite P.C. Lewis' obligation to cease questioning until Mr. Perinpasivam had spoken to duty counsel. The second factor under Grant relates to the court determining the extent to which the breach undermined Mr. Perinpasivam's interests protected by the Charter rights that were infringed.

[65] It is my view P.C. Lewis completely undermined Mr. Perinpasivam's right to counsel by continuing to respond to the legal questions being asked by Mr. Perinpasivam. P.C. Lewis did not hold off his questioning of Mr. Perinpasivam until after Mr. Perinpasivam had exercised his right to counsel (Manninen, supra). While the taking of breath samples has been held to be minimally intrusive upon constitutional rights (Grant, supra, at para. 111), it is my view the facts of this case in not implementing access to duty counsel when there has been a clear and unequivocal request to exercise the right is exceedingly serious. If a police officer can ignore the clearly stated request by a detainee to speak to counsel of choice or duty counsel without any consequences respecting any evidence obtained after such a breach this would completely erode what has been held to be a fundamental Charter right. What is perhaps more insidious is the fact it is clear Mr. Perinpasivam had a pressing concern throughout his dealings with P.C. Lewis as to whether he would be released from the police station given he had just started a new job. Many of Mr. Perinpasivam's legal questions related to this concern of being able to arrive at his employment on time. The denial by the police in facilitating Mr. Perinpasivam speaking to duty counsel undermined the very interests s. 10(b) seeks to protect (see R. v. Pino, 2016 ONCA 398, at para. 105).

[66] In my view the second factor, in this case, favours exclusion.

C. Society's Interest in an Adjudication on the Merits

[67] Here, the evidence in question, the breath samples, is real and reliable evidence. Their exclusion would result in the collapse of the Crown's case. Although I am of the opinion the public would expect the police to implement and facilitate a detainee's access to counsel when a clear and unequivocal request to speak to a lawyer of choice or duty counsel is made, the third factor usually favours admission of the breath samples.

D. Overall Balancing

[68] After balancing the three factors in Grant I have concluded the admission of the breath samples would bring the administration of justice into disrepute. It is my understanding from the Crown's submissions at the conclusion of the evidence, if the breath samples are excluded there is no case. Consequently, the charge of over 80 is dismissed.

Released: June 9, 2016

Signed: "Justice Peter C. West"